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Kozevnikoff v. Tanana Village Council (04/23/2004) sp-5800
Kozevnikoff v. Tanana Village Council (04/23/2004) sp-5800
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
AARON KOZEVNIKOFF, SR., )
) Supreme Court No. S-10881
Appellant, )
) Superior Court No.
v. ) 4FA-02-645 CI
)
TANANA VILLAGE COUNCIL, ) O P I N I O N
)
Appellee. ) [No. 5800 - April
23, 2004]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Ella Anagick, Law Office of
Ella Anagick, Anchorage, for Appellant.
Lloyd Benton Miller and Marissa K. Flannery,
Sonosky, Chambers, Sachse, Miller & Munson,
LLP, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. A losing party interpreted notations made by a court
clerk on the final judgment (to the effect that costs or
attorneys fees had not yet been awarded) as constituting a denial
of the opponents motion for costs and attorneys fees. Because
the superior court correctly rejected that interpretation, we
affirm the superior courts award of costs and fees.
II. FACTS AND PROCEEDINGS
Aaron Kozevnikoff sued for a declaration that a tribal
court order concerning the custody of his two children was null
and void on the grounds that it violated his due process and
parental rights. The Tanana Village Council (TVC) moved to
dismiss Kozevnikoffs claim on jurisdictional grounds and for
failure to state a claim upon which relief could be granted. In
July 2002 Superior Court Judge Niesje J. Steinkruger granted TVCs
motion to dismiss on both grounds.
In August TVC timely requested attorneys fees under
Alaska Civil Rule 82.1 Kozevnikoff opposed the motion and filed
a notice of appeal. The superior court subsequently entered
final judgment dismissing Kozevnikoffs claims with prejudice on
September 12, 2002. Regarding attorneys fees the order read:
FURTHER ORDERED and ADJUDGED that Defendant,
Tanana Village Council, is awarded attorneys
fees in the amount of $ ;
together with costs in the amount of $
, for a total judgment of $
, on which interest shall accrue at the rate
of 4.25% which is the statutory rate per
annum until paid in full.
(The underlined passage was handwritten by Judge Steinkruger.)
The spaces where a monetary amount would be entered were left
blank and a court clerk wrote w/ out cost or atty fees on the
certificate of distribution. The order was distributed on
September 16, 2002.
A clerks order dated October 1, 2002 held Kozevnikoff
liable for $220.48 in costs. The final judgment was
redistributed to the parties on October 2 with the clerks
notation w/ costs (no atty fees yet).
On October 15 Kozevnikoff and TVC agreed to dismiss the
merits appeal. Their Dismissal by Agreement stated that: (1)
This case having settled in full, the parties agree that the
appeal should be dismissed under Appellate Rule 511(a) and (2)
Each party will bear its own costs and fees for the purposes of
this appeal. Lloyd Miller, counsel for TVC, stated that Marissa
Flannery, who handled the superior court litigation for TVC,
proposed the fee language in the agreement to Ella Anagick,
Kozvenikoffs attorney, as part of an expressed understanding that
the Appellant would remain responsible for any fees or costs that
might be awarded in the superior court.
On October 13 Judge Steinkruger dismissed without
prejudice TVCs August motion for fees due to the insufficiency of
the affidavit filed in support of the motion and inconsistency
within the motion itself.2 Judge Steinkruger gave TVC ten days
to file a supplemental motion for fees. TVC filed its
supplemental motion on October 22 stating that its actual fees
were $15,732.15 and requesting an award of $3,146.43.
Kozevnikoff opposed TVCs motion as being untimely and violating
principles of res judicata. In November Judge Steinkruger
awarded TVC $3,146.43 in attorneys fees.
III. STANDARD OF REVIEW
We review the trial courts award of attorneys fees for
an abuse of discretion.3 When a review of an award of attorneys
fees and costs requires an interpretation of the Alaska Civil
Rules, we apply our independent judgment.4
IV. DISCUSSION
A. The September 12th Final Judgment Was Not a Denial of
TVCs Motions for Costs and Attorneys Fees.
Kozevnikoff argues that the clerks notation w/ out
costs or atty fees denied TVCs motions for attorneys fees and
costs. Kozevnikoff essentially claims that notations made by a
court clerk and not signed by the judge should be considered part
of a judicial order. We reject this argument.
Alaska Civil Rule 58 mandates that the entry of
judgment not be delayed while the court determines fees and
costs,5 making it appropriate for the court to enter the judgment
on the merits without waiting for a final determination of fees
and costs. Rule 58.1 draws a distinction between a judicial
order and a clerks certificate of distribution, providing that
judgments are effective when they are signed and will thereafter
be distributed by the court clerk.6 Furthermore, if the
September 12 order had been a judicial order denying fees, the
superior court would have had to provide the parties with an
explanation as to why the court was not following the fee
schedule set out in Rule 82.7
Because notations made by a clerk on the certificate of
distribution are not judicial orders and because a final judgment
may be issued without waiting for the court to calculate
attorneys fees and costs, we reject Kozevnikoffs argument that
the September 12 order denied TVCs August 16 motions for fees and
costs.
B. The Superior Court Did Not Abuse Its Discretion When It
Allowed TVC To Supplement Its Original Motion for
Attorneys Fees.
Under Alaska Civil Rule 82 parties must file motions
for attorneys fees within ten days of the clerks distribution of
the judgment or within a reasonable time determined by the
court.8 The question here is whether the trial court abused its
discretion in granting TVC ten days to supplement its original
motion for attorneys fees.9 A trial court will not be found to
have abused its discretion in allowing a party additional time to
supplement its original motion under Rule 82 unless the
additional time (1) was unreasonable or (2) resulted in prejudice
to the opposing party.10
1. The amount of time granted was reasonable.
1. On October 13 Judge Steinkruger gave TVC ten days
to file a supplemental motion for attorneys fees because its
original motion and supporting affidavit were not sufficiently
clear. The superior court has the discretion to allow for
supplementation when the moving party fails to adequately support
its claim for fees.11 Alaska Civil Rule 60 also allows a party to
correct a clerical error arising from oversight or omission12 and
has been used by this court to allow a party to supplement its
original motion for attorneys fees when the original motion
contained a clerical error.13 Because the superior court has the
power to correct clerical errors, omissions, and ambiguities in a
partys motion for attorneys fees and because ten days was a
reasonable amount of time, it was not unreasonable for Judge
Steinkruger to allow TVC ten days to file a supplemental motion
for fees.
2. The supplemental motion did not prejudice Kozevnikoff.
Allowing a party to supplement its original motion for
attorneys fees may constitute an abuse of discretion if it
prejudices the opposing party.14 As his own brief concedes,
Kozevnikoff suffered prejudice only because of his erroneous
belief that the September 12 order was a denial of attorneys
fees, not because Judge Steinkruger allowed TVC to correct its
clerical error in a supplemental motion.
Kozevnikoff also argues that his mistaken belief that
the September 12 order constituted a denial of fees and costs
should lead to a reversal of the superior courts award. He
argues that because of his misplaced reliance on the finality of
the September 12 order he suffered prejudice settling his appeal
on the assumption that no attorneys fees or costs were awarded to
[the] Appellee. Kozevnikoffs argument of reliance is not
supported by the record,15 nor does it justify denying TVC costs
and fees to which it is entitled.
Because Kozevnikoff was not prejudiced by TVCs
supplemental motion and because it was reasonable for the
superior court to give TVC ten days to supplement its original
motion, there was no abuse of discretion.
C. TVC Was Not Required To File a Motion for Reconsideration
Under Alaska Civil Rule 77.
Kozevnikoff argues that TVC should not receive fees or
costs because it failed to file a Motion for Reconsideration of
the September 12 order pursuant to Civil Rule 77. Because the
September 12 order was not a judicial ruling denying TVCs motion
for costs and attorneys fees, TVC was not required to file a
motion to reconsider under Rule 77.
V. CONCLUSION
We AFFIRM the superior courts award of $220.48 in costs
and $3,146.43 in attorneys fees to TVC.
_______________________________
1 Rule 82(b) states in pertinent part:
[The court] shall award the prevailing party
in a case resolved without trial 20 percent
of its actual attorneys fees which were
necessarily incurred. The actual fees shall
include fees for legal work customarily
performed by an attorney but which was
delegated to and performed by an
investigator, paralegal, or law clerk.
Alaska R. Civ. P. 82(b).
2 TVCs motion for fees requested $3,146.46, stating that
this amount represented twenty percent of its actual attorneys
fees, but TVCs affidavit in support of the motion stated that
TVCs actual attorneys fees were $3,146.43.
3 Hunt v. Univ. of Alaska, Fairbanks, 52 P.3d 739, 742
(Alaska 2002).
4 City of Kodiak v. Parish, 986 P.2d 201, 202 (Alaska
1999).
5 Alaska R. Civ. P. 58.
6 Alaska R. Civ. P. 58.1(a)(2), (d).
7 Alaska R. Civ. P. 82(b)(3) (stating [i]f the court
varies an award, the court shall explain the reasons for the
variation). See also Patrick v. Sedwick, 413 P.2d 169, 179
(Alaska 1966) (reasons for deviating from set fee schedule must
appear in record).
8 Alaska R. Civ. P. 82(c).
9 TVCs original motion for attorneys fees is not subject
to this analysis because its was filed within the time limits set
forth in Rule 82.
10 Cizek v. Concerned Citizens of Eagle River Valley,
Inc., 71 P.3d 845, 849 (Alaska 2003) (citing Alderman v. Iditarod
Props., Inc., 32 P.3d 373, 397 (Alaska 2001)).
11 Gonzalez v. Safeway Stores, Inc., 882 P.2d 389, 399
(Alaska 1994).
12 Alaska R. Civ. P. 60(a).
13 Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990).
14 See Alderman, 32 P.3d at 397.
15 At the time that Kozevnikoff entered into the
settlement, he should have at least been on notice that the
superior court had granted TVC costs and had not yet awarded
attorneys fees.
